Case: In the matter of the Application of United States for an Order Authorizing the Physical Search of Nonresidential Premises and Personal Property

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On November 2, 1981, the Select Committee on Intelligence of the U.S. Senate issued a report on the Implementation of the Foreign Intelligence Surveillance Act of 1978. The Foreign Intelligence Surveillance Act had been in full effect for over two years when the report was issued. The Committee recommended that the Act be permitted to continue in effect without amendment pending the results of further study and deliberations by the Committee. The report included a Memorandum of Law submitted by the Department of Justice to the Foreign Intelligence Surveillance Court (FISC) and the Court's response.

On June 4, 1981, the Department of Justice applied to the FISC for an order authorizing the physical search of nonresidential premises and personal property. The Department simultaneously submitted a Memorandum of Law to the Court contending that--notwithstanding its application--the Court lacked jurisdiction and authority to approve physical searches for foreign intelligence purposes. The Department of Justice argued that the Constitution does not require prior judicial review of intelligence physical searches of foreign powers or their agents when properly authorized by the President or the Attorney General. The Memorandum of Law was written in unclassified form to permit its publication in the Committee's report.

Presiding Judge George L. Hart, Jr., agreed with the memorandum and denied the application on the basis that the FISC has no statutory, implied or inherent authority or jurisdiction to review intelligence physical search applications. A redacted copy of the Court's order is included with the Committee's report.